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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This case is before the Authority on a negotiability appeal filed under
section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute
(the Statute). It concerns the negotiability of six proposals that were
submitted during impact and implementation bargaining over revised position
descriptions pertaining to the performance of nuclear and non-nuclear
work.(1)

Proposal 1, among other things, would require the Agency to minimally
qualify employees for positions in a nuclear program, based on seniority or a
past determination of qualifications, prior to implementing a proposed change
in job descriptions. We find that the proposal is nonnegotiable because it
directly and excessively interferes with the Agency's right to assign employees
under section 7106(a)(2)(A) of the Statute.

Proposals 2 and 4 would essentially define a competitive level, within
a competitive area, to include employees who are assigned to both nuclear and
non-nuclear functions. We conclude that the proposals are nonnegotiable because
they directly and excessively interfere with the Agency's rights to assign
employees under section 7106(a)(2)(A) of the Statute and to select under
section 7106(a)(2)(C) of the Statute.

Proposal 3 would require the Agency to notify and consider bargaining
unit employees for unit positions in the nuclear program before soliciting
non-bargaining unit employees and to select bargaining unit employees, based on
seniority, if bargaining unit employees are equally qualified with other
bargaining unit employees or non-bargaining unit employees. We conclude that
the proposal directly and excessively interferes with the Agency's right to
select under section 7106(a)(2)(C) of the Statute.

II. Procedural Matter and Background

The Agency filed a supplemental submission urging the Authority to
disregard Union arguments contained in the response to the Agency's statement
of position that had not been raised in the petition for review. Specifically,
the Agency claims that the Union did not expressly assert in its petition that
its proposals constitute negotiable procedures or appropriate arrangements
under sections 7106(b)(2) and 7106(b)(3) of the Statute. The Agency adds that
if the assertions made in the response are deemed adequate and timely, the
proposals are neither negotiable procedures nor appropriate arrangements for
reasons that are set forth in its supplemental submission.

We find no merit to the Agency's contention. In our view, the Union's
assertions were properly raised. We will, however, consider the arguments
raised by the Agency in its supplemental submission in order to provide a more
complete record on which to base our negotiability determinations. SeeAmerican Federation of Government Employees, Council 257, AFL-CIO, National
Association of Government Inspectors and Quality Assurance Personnel, Local
4004, Naval Aviation Depot, Pensacola, Florida and Department of the Navy,
Naval Aviation Depot, Pensacola, Florida, 30 FLRA 1144 (1988) (Authority
granted agency's request to file supplemental submission to address union
arguments, raised in reply brief, that proposals constituted appropriate
arrangements).

As noted, the Union's proposals were submitted during the course of
impact and implementation bargaining concerning revised position descriptions
for employees engaged in the performance of either nuclear functions or
non-nuclear functions. As explained in an enclosure to the Agency's
supplemental submission, the Department of the Navy authorized the
establishment of position descriptions for naval shipyard production workers
who perform work in the Naval Nuclear Propulsion Program and who meet certain
criteria. In addition, authorization was provided for the establishment of
separate competitive levels to differentiate, where appropriate, between
nuclear workers and non-nuclear workers in various production trades.

III. Proposal 1

Prior to implementing the proposed change in job descriptions,
management will minimally qualify all employees who are more senior than the
least senior employee currently in the nuclear program, in accordance with FPM
351. Those employees who have previously been fully nuclear qualified will have
satisfied the requirement of minimal qualification. Any subsequent training to
full nuclear status shall also be done in accordance with seniority as outlined
in FPM 351. Those employees who decline to be assigned to the nuclear program
will sign a letter that designates this and explains that their decision may
affect their retention in the future.

A. Positions of the Parties

1. Agency

The Agency contends that the proposal is nonnegotiable because it
interferes with management's rights to assign employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute.

With regard to the right to assign employees, the Agency argues that it
has the right to establish the skills and qualifications necessary to perform
work. By requiring non-nuclear employees to receive specific training and to
qualify such employees for positions in the nuclear program based on seniority,
the Agency maintains that the proposal deprives the Agency of its authority to
determine which employees are capable of performing the work. The Agency adds
that "[t]he plain wording of the proposal is that management will 'qualify' for
nuclear work any non-nuclear employee who possesses seniority." Statement of
Position at 3.

The Agency also asserts that the proposal interferes with its right to
assign work because the proposal requires the Agency to provide training. The
Agency cites several Authority decisions for the proposition that proposals
requiring training to enable employees to qualify for other positions or to
enhance skills interfere with the right to assign work under section
7106(a)(2)(B).

In is supplemental submission, the Agency asserts that the proposal is
not a negotiable procedure under section 7106(b)(2) of the Statute because it
would substantively interfere with the exercise of management's rights to
assign employees and to assign work. The Agency argues that the determination
as to whether employees are qualified to perform the duties of a particular
position is integral to the right to assign employees.

The Agency also maintains that the proposal is not an appropriate
arrangement under section 7106(b)(3) of the Statute because it would
excessively interfere with the exercise of its management rights. The Agency
claims that a requirement to qualify employees for positions in the nuclear
program based on seniority would deprive the Agency of its authority to make
determinations as to which employees are qualified to perform nuclear work.
Also, the Agency asserts that the Union's explanation of the meaning of the
proposal, as preserving management's discretion to fill positions with
qualified employees, is in conflict with the plain wording of the proposal that
"management will minimally qualify" all employees. The Agency distinguishes
this proposal from a situation in which an agency may be required to fill
positions with qualified employees whose jobs have been eliminated. The Agency
states that the basic issue here is whether employees are qualified to perform
the duties attendant to nuclear work.

2. Union

The Union states that the proposal is designed to provide employees
with an opportunity for assignment to the nuclear program. The Union explains
that the development of new job descriptions will give employees who are
assigned to nuclear work different retention rights. The Union adds that the
proposal will minimally qualify for nuclear positions those employees who have
a higher retention standing on the current retention register than employees
presently in the nuclear program with lower retention standings. The Union also
explains that employees previously deemed fully qualified will have satisfied
the minimum requirement, that all training will be conducted using the method
outlined in the proposal, and that employees have a right to decline entry into
the nuclear program.

The Union also contends that the proposal constitutes a negotiable
procedure under section 7106(b)(2) of the Statute in that it sets forth the
steps to be followed prior to implementing the proposed change in job
descriptions. The Union adds that neither the intent of the proposal nor its
plain meaning would preclude the Agency from exercising its discretion to
assign employees or assign work. The Union maintains that the proposal does not
require management to fill positions with unqualified employees but, rather, to
attempt to fill positions through the reassignment of qualified employees whose
positions have been eliminated. The Union argues that the Agency only has to
minimally qualify those employees whose seniority rights otherwise would be
adversely affected and who do not decline assignment to the nuclear program. As
such, the Union asserts that the proposal constitutes an appropriate
arrangement under section 7106(b)(3) of the Statute for employees whose
seniority rights would be adversely affected by the change in job descriptions.

B. Analysis and Conclusions

1. The Proposal Directly Interferes with Management's Right
to Assign Employees

Proposal 1 would require the Agency to take various actions to qualify
employees for positions in the nuclear program. For the following reasons, we
conclude that the proposal directly interferes with the Agency's right to
assign employees.

The right to assign employees under section 7106(a)(2)(A) of the
Statute includes the right to determine the qualifications and skills needed to
perform the work of a position, including job-related individual
characteristics such as judgment and reliability. Proposals that prevent an
agency from determining the qualifications of a position directly interfere
with the right to assign employees. SeeAmerican Federation of
Government Employees, Local 1923 and U.S. Department of Health and Human
Services, Health Care Financing Administration, Baltimore, Maryland, 41
FLRA 618, 622 (1991), and cases cited therein.

As a threshold matter, prior to the implementation of the proposed
changes in job descriptions, Proposal 1 would require the Agency to minimally
qualify employees, that is, to determine that employees posess the minimal
qualifications necessary to perform nuclear work, based on seniority. The
proposal would operate to minimally qualify employees not presently assigned to
the nuclear program who possess greater seniority than the least senior
employee presently in the nuclear program. The proposal further provides that
employees who previously have been fully nuclear qualified will be deemed to
have satisfied the requirement of minimal qualification. We find that the
requirement to minimally qualify based on seniority or past qualification would
directly interfere with the Agency's right to determine whether the employees
currently possess the qualifications and skills necessary to perform nuclear
work. That is, using either seniority or a past determination of qualifications
as the sole criterion for assessing employees' present ability to perform
nuclear work would prevent the Agency from determining whether each employee
has the current qualifications to perform such work.

We reject the Union's contention that the proposal would require the
Agency simply "to attempt to fill vacant positions through the reassignment of
qualified employees whose positions have been eliminated[,]" and would not
require the Agency to fill positions with unqualified employees. Response at
10. The plain language of the proposal says nothing about permitting the Agency
to determine the qualifications of employees. Rather, the proposal expressly
provides that the Agency will minimally qualify employees based on seniority.
We do not base a negotiability determination on a union's statement of intent
where that statement is inconsistent with the plain wording of a proposal.
Seefor example, International Federation of Professional and
Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990). Therefore, our
determination that the proposal directly interferes with the Agency's right to
assign employees is based on the language of the proposal.

The proposal's reference to "FPM 351," which the Union does not
explain, does not warrant a different result. Federal Personnel Manual (FPM)
Supplement 351-1 governs reduction in force (RIF). Proposal 1 does not
specifically address RIF but, even if it did, we find nothing in the FPM
provision that requires agencies to qualify employees for positions based on
seniority. Indeed, subchapter S1-3 states that, in order to minimize the need
for a RIF, agencies may reassign employees or allow employees to voluntarily
reduce their grade levels. In conjunction with these actions, agencies may
waive minimum qualification requirements if the agency determines that an
employee has the capacity, adaptability, and special skills needed to perform
the duties of the position. Seealso 5 C.F.R. § 351.703
(agencies may assign employees in RIF situations without regard to the
standards and qualifications established for the positions by the Office of
Personnel Management if: (1) the affected employee meets minimum education
requirements for the position; and (2) the agency determines that the employee
"has the capacity, adaptability, and special skills needed to satisfactorily
perform the duties and responsibilities of the position."). As we stated above,
the proposal here would not allow the Agency to assess whether employees
possess the requisite skills and qualifications necessary to perform the work
attendant to nuclear positions. Consequently, we conclude that the proposal
directly interferes with the Agency's right to assign employees.

In light of this conclusion, we need not discuss further the remaining
portions of the proposal. Those portions address actions that are either
contingent upon or relate to the requirement that employees be minimally
qualified for nuclear positions. As we have found that that requirement
directly interferes with the Agency's right to assign employees, and as the
remaining portions of the proposal rely on that requirement and have not been
asserted or shown to have any independent viability, we conclude that Proposal
1 directly interferes with management's right in its entirety.

We also find that the proposal does not constitute a negotiable
procedure as claimed by the Union. The Authority has held that proposals that
directly interfere with the exercise of a management right do not constitute
negotiable procedures under section 7106(b)(2) of the Statute. SeeAmerican Federation of Government Employees, Local 2879 and U.S. Department
of Health and Human Services, Social Security Administration, Chula Vista
District, San Diego, California, 38 FLRA 244, 248 (1990); American
Federation of Government Employees, Council 214 and Department of the Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
34 FLRA 977, 984 (1990). As Proposal 1 directly interferes with the exercise of
management's right to assign employees, we conclude that it does not constitute
a negotiable procedure under section 7106(b)(2) of the Statute.

2. The Proposal Is Not a Negotiable Appropriate
Arrangement

Finally, we find that the proposal does not constitute a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute. In determining
whether a proposal constitutes a negotiable appropriate arrangement, the
Authority first determines whether the proposal is intended as an arrangement
for employees adversely affected by the exercise of a management right. If the
Authority determines that the proposal is an arrangement, the Authority then
determines whether the arrangement is appropriate, or whether it is
inappropriate because it excessively interferes with management's right.
National Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National
Guard).

The Union claims that the development of separate job descriptions for
nuclear work may lead to separate competitive levels for nuclear and
non-nuclear work. The Union asserts that, as a consequence, employees'
retention standings will be affected and there may be adverse effects on the
employees' seniority rights. The Union also states that the proposal would
allow the Agency to fill positions with employees whose positions have been
eliminated. As so explained, we find that the proposal is intended as an
arrangement. However, after balancing the competing interests of the employees
and the Agency, we conclude that the proposal would excessively interfere with
the exercise of management's right to assign employees.

As noted earlier, the proposal would require the Agency to consider
employees minimally qualified based on seniority or a past determination
without making a determination that the employees currently possess the
requisite qualifications to enable them to perform nuclear work. The
requirement that employees be considered minimally qualified to perform work in
the manner specified in the proposal is absolute and permits no exception where
employees do not have the capacity to perform that type of work or do not have
the particular skills that are needed. On the other hand, employees who are
considered qualified to perform nuclear work may derive some benefit if
separate competitive levels are established and non-nuclear positions are
eliminated. While it is impossible to assess the precise effect such actions
might have on employees, we recognize that the employees' retention standings
or seniority rights might be affected. However, we conclude that the effect on
the Agency's ability to assign employees is significant and outweighs any
benefits that would inure to employees.

In reaching this conclusion, we find that Proposal 1 is clearly
distinguishable from a proposal at issue in American Federation of
Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 253-58 (1990)
(Portsmouth Naval Shipyard). In that case, we found negotiable as an
appropriate arrangement a proposal that required an agency, to the extent
possible, to minimize displacement actions by, among other things, waiving
qualifications and standards for employees affected by a RIF or other actions.
We concluded, based on the union's statement of intent, that the proposal was
"subject to normal management considerations such as making qualifications
determinations . . . ." Id. at 257. By contrast, the proposal here does
not allow for management to make the necessary qualifications determinations to
ensure that employees are capable of performing nuclear work. Also, the
proposal is not limited to situations involving RIFS or other actions that were
present in Portsmouth Naval Shipyard. Rather, the proposal would operate
prior to the implementation of the change in job descriptions.

In sum, we conclude that Proposal 1 is nonnegotiable because it
excessively interferes with the Agency's right to assign employees. In view of
this conclusion, we need not address the Agency's additional contention.

IV. Proposals 2 and 4

Proposal 2

For the purpose of a RIF, Management will not differentiate between
Nuclear and Non-nuclear.

Proposal 4

The parties recognize that those positions assigned to nuclear
functions and those assigned to non-nuclear functions are in the same grade
level and classification series and are similar enough in duties, qualification
requirements, pay schedules and working conditions that they should be placed
within the same competitive level for purposes of retention and RIF. These
positions shall remain within the same competitive level unless there is some
significant change, reasonably articulated and demonstrated by management, that
would require the establishment of separate competitive levels. Should this
occur, Management will give the Union at least sixty days notice of the change
prior to establishing separate competitive levels.

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 2 and 4 are nonnegotiable because
they interfere with the Agency's rights to assign employees, select, assign
work, determine the personnel by which Agency operations are conducted, and
determine internal security practices.

First, the Agency argues that both proposals interfere with
management's right to establish separate competitive levels for nuclear and
non-nuclear positions, and that the proposals thereby interfere with
management's right to assign employees under section 7106(a)(2)(A) of the
Statute. The Agency asserts that Proposal 2 would completely prevent any
differentiation between nuclear and non-nuclear positions during a RIF, and
that Proposal 4 would allow assignment to different competitive levels only
where the Agency could articulate and demonstrate the necessity for separate
competitive levels. The Agency argues that under FPM Supplement 351, subchapter
3-3, it has the authority to establish competitive levels for purposes of a
RIF. The Agency further argues that under 5 C.F.R. § 351.403, there are
certain requirements that must be met in determining what positions may be
encompassed within a competitive level.(2) The Agency
asserts that nuclear and non-nuclear positions are not interchangeable and that
employees lacking training and actual experience in nuclear positions cannot
perform successfully the critical elements of nuclear positions.

In further support of its contention that the proposals interfere with
management's right to assign employees, the Agency argues that the proposals
deprive the Agency of its authority to determine whether the skills, knowledge
and abilities associated with one position are sufficiently like other
positions so that an employee in that position is qualified to perform the
duties of the other positions. Citing various proposals in American
Federation of Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), the Agency
contends that the right to make such determinations is integral to the right to
assign employees under 7106(a)(2)(A) of the Statute.

The Agency also contends that the proposals interfere with management's
right to select under section 7106(a)(2)(C) by injecting the Union into the
process of deciding which employees are best suited to perform particular types
of work. The Agency relies on Authority decisions which it argues stand for the
proposition that the right to select includes the right to determine the
knowledge, skills and abilities needed to perform the work of a position and
that proposals defining a competitive level directly interfere with the right
to select.

The Agency further asserts that Proposals 2 and 4 interfere with its
rights to assign work and determine the personnel by which Agency operations
are conducted under section 7106(a)(2)(B) of the Statute. The Agency maintains
that nuclear and non-nuclear positions are not interchangeable and that by
requiring employees to be placed in the same competitive level, the Agency
would be precluded from making various work assignments. The Agency also argues
that by designating the types of employees who are qualified to perform nuclear
work, the proposals interfere with the Agency's right to determine the
personnel by which Agency operations are conducted.

The Agency also maintains that Proposals 2 and 4 are nonnegotiable
because they interfere with the Agency's right to determine internal security
practices under section 7106(a)(1) of the Statute. The Agency states that it
"places great emphasis upon ensuring that only personnel with specialized
training and of unquestioned reliability and integrity perform . . . duties[]"
in the nuclear program. Statement of Position at 12. The Agency further states
that "[n]uclear work is highly sensitive and the determination of who performs
such work has obvious safety implications." Id. at 13. The Agency argues
that by preventing it from deciding which employees have the characteristics
necessary to perform nuclear work, the proposals have the potential for
undermining safety.

In its supplemental submission, the Agency argues that the proposals do
not constitute negotiable procedures because they are "a usurpation of
management's rights." Agency's Supplemental Submission at 8. The Agency asserts
that Proposal 2 would bar it from distinguishing between nuclear and
non-nuclear employees and that Proposal 4 would act as a direct constraint on
the Agency's exercise of its management rights.

The Agency further contends that the Union's reliance on a vitally
affects test set forth in American Federation of Government Employees, Local
32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988)
(AFGE, Local 32), is irrelevant because the Agency did not assert that
the effect of the proposals on non-unit employees was a bar to negotiations.
The Agency also argues that the Union's reliance on AFGE, Local 32 is
inapposite because that case dealt with competitive areas, rather than
competitive levels, which are involved here.

Next, the Agency contends that the decision of the Merit Systems
Protection Board (MSPB) in Kira v. Department of the Navy, slip op. No.
SEO3518710241-42 (1987), cited by the Union, is not dispositive of the issue.
The Agency asserts that it has not and does not contend that every nuclear
position necessitates placement in a different competitive level from every
non-nuclear position. However, the Agency argues that there are nuclear
positions that need to be placed in separate competitive levels and that the
Agency has the right, under internal Agency guidance and provisions contained
in the FPM, to determine which positions belong in separate competitive levels.

Finally, the Agency contends that the Union has not provided any basis
on which to find that the proposals constitute appropriate arrangements under
section 7106(b)(3) of the Statute. Alternatively, the Agency argues that the
proposals excessively interfere with the exercise of management's rights to
assign and select employees with the requisite capabilities, qualifications and
training to perform highly specialized nuclear work. The Agency asserts that
proposals, such as Proposals 2 and 4, that completely negate the exercise of
management rights do not constitute appropriate arrangements under section
7106(b)(3) of the Statute.

2. Union

In its petition for review, the Union contends that, for purposes of a
RIF, Proposal 2 was designed to maintain the statusquo with
respect to competitive levels. The Union notes that, in the past, employees had
been placed in the same competitive level without regard to whether they were
in the nuclear program. The Union maintains that the proposal does not affect
the Agency's ability to establish separate classifications or determine the
number or types of positions that will be terminated. The Union also states
that the proposal reflects an understanding that "an employee filing [sic] one
position may fulfill the duties of the other position without loss of
productivity beyond that normally expected to orientate the employee." Petition
for Review at 2.

With respect to Proposal 4, the Union states that the proposal is a
recognition that there is no need to require that employees be placed in
different competitive levels based solely on whether they are assigned to
nuclear or non-nuclear positions. The Union notes, however, that the Agency can
establish separate competitive levels where there is a basis for doing so and
the Union is properly notified.

In its reply brief, the Union states that the proposals constitute
negotiable procedures or appropriate arrangements. Additionally, citing
AFGE, Local 32, and other decisions, the Union argues that proposals
defining the area in which bargaining unit employees must compete for job
retention are negotiable because they vitally affect unit employees. The Union
asserts that Proposals 2 and 4 affect vital interests of employees because they
concern whether bargaining unit employees will retain their jobs in the event
of a RIF.

Next, the Union asserts that the issue as to whether the Agency should
distinguish between nuclear and non-nuclear positions for the purpose of
determining appropriate competitive levels was resolved by the MSPB in Kira
v. Department of the Navy. The Union notes that the MSPB sustained the
Agency's determination that there was interchangeability between machinists in
the nuclear and non-nuclear programs and that one combined competitive level
was appropriate. The Union argues that Proposals 2 and 4 merely identify the
competitive level already established by the Agency and upheld by MSPB. The
Union argues that if the Agency decides to change the competitive level,
Proposal 4 simply requires the Agency to explain the reason for the change and
provide the Union with notice so that the Union can provide input.

Finally, the Union disputes the Agency's contention that the proposals
interfere with the Agency's right to determine its internal security practices.
The Union states that many non-nuclear employees possess the same level of
security clearance as nuclear employees and that placing nuclear and
non-nuclear employees in the same competitive level would not undermine the
Agency's control of its internal security practices.

B. Analysis and Conclusions

Proposals 2 and 4 directly and excessively interfere with the Agency's
rights to assign and select employees under sections 7106(a)(2)(A) and
7106(a)(2)(C) of the Statute and are nonnegotiable.

Proposal 2 sets forth the requirement that during a RIF management will
not differentiate between employees who do nuclear work and employees who do
non-nuclear work. As explained by the Union, this proposal is designed to keep
nuclear and non-nuclear employees in the same competitive level. Although the
proposal does not specifically refer to competitive levels, the Union's
statement of intent is consistent with the language of the proposal. Therefore,
for purposes of our decision, we will construe the proposal as requiring that
nuclear and non-nuclear employees remain in the same competitive level.
Proposal 4 provides more explicitly that positions assigned to nuclear and
non-nuclear functions that are in the same grade level and classification
series and are similar in duties, qualifications, pay schedules and working
conditions will be placed in the same competitive level for purposes of
retention and RIF. Proposal 4 further allows for separate competitive levels if
the Agency can establish a basis for doing so and the Union is notified prior
to the change to separate competitive levels.

Previously, in Congressional Research Employees Association and
Library of Congress, Congressional Research Service, 25 FLRA 306, 318-20
(1987) (Congressional Research Employees Association), the Authority
found nonnegotiable a proposal that would have required all positions in the
same or related series and grade to be placed in the same competitive level.
The Authority found that the proposal directly and excessively interfered with
management's rights to assign employees under section 7106(a)(2)(A) and to make
selections for positions under section 7106(a)(2)(C) of the Statute. More
specifically, the Authority held that the decision as to which positions are
placed in a competitive level requires a determination that the duties of a
position require similar skills, knowledge and abilities, and that the employee
in one position is qualified to perform the duties of the other position. The
Authority held that such a determination implicates management's rights to
assign employees under section 7106(a)(2)(A) of the Statute and to select
employees for appointments to positions under section 7106(a)(2)(C). Finally,
in finding that the proposal did not constitute a negotiable appropriate
arrangement, the Authority concluded that "[t]he placement of employees into
positions for which they are not qualified could severely hamper the [a]gency's
ability to effectively conduct its day-to-day operations following a RIF[,]"
and, therefore, that the burdens imposed on the exercise of the agency's rights
outweighed the benefits to affected employees. Id. at 320.

We reach the same conclusions here. Proposal 2, as we have construed
it, would require the Agency to keep nuclear and non-nuclear employees in the
same competitive level. Such a requirement would prevent the Agency from
determining whether, in fact, the duties of the respective positions are
similar enough in terms of skills, knowledge and abilities to enable the
employees to perform the duties of each position so that a single competitive
level is appropriate. As such, the proposal directly and excessively interferes
with the Agency's rights to assign and select employees.

Proposal 4, although worded differently, leads to the same result. To
an extent, Proposal 4 contains some of the same requirements governing the
establishment of competitive levels that are set forth in 5 C.F.R. § 351.403. However, the proposal is not consistent with those regulatory
requirements.(3) The cited provision requires agencies to establish
competitive levels consisting of positions that are similar enough, in terms of
certain enumerated criteria, that "the incumbent of one position could
successfully perform the critical elements of any other position upon entry
into it, without any loss of productivity beyond that normally expected in the
orientation of any new but fully qualified employee." 5 C.F.R. § 351.403(a). By requiring that the Agency place positions assigned to both
nuclear and non-nuclear functions in the same competitive level, unless the
Agency can demonstrate that a significant change has occurred, the proposal
would prevent the Agency from making the necessary determinations that
employees in each job classification can successfully perform the duties of the
other job classification within the meaning of the applicable regulation.
Although the Union explains that the proposal reflects an understanding that
employees filling one position may perform the duties of the other position
without any loss of productivity beyond that expected to orient the employee,
we are not persuaded that this explanation comports with applicable regulatory
requirements. The cited regulatory provision assumes that an employee is "fully
qualified" to perform the critical elements of a position on entry into that
position. In our view, the proposal would not permit the Agency to make the
necessary determination that employees assigned to non-nuclear functions are
fully qualified to perform nuclear functions.

Additionally, we find that because the Agency would be prevented from
determining that employees in nuclear and non-nuclear job classifications
possess the necessary qualifications to perform the duties in each job
classification, Proposal 4 is distinguishable from a proposal found negotiable
in National Treasury Employees Union and Nuclear Regulatory Commission,
31 FLRA 566, 588-89 (1988), rev'd as to other matters sub nom.Nuclear Regulatory Commission v. FLRA, 895 F.2d 152 (4th Cir. 1990). In
that case, the proposal preserved the Agency's right to make the requisite
determinations with respect to the skills, knowledge and abilities of the
positions such that the employees could perform the duties of the respective
positions. By contrast, the proposal here, which requires the Agency to
recognize that employees in nuclear and non-nuclear functions are sufficiently
similar generally to warrant placement in the same competitive level, does not
permit the type of determination of qualifications that agencies are required
to make.

Although the Union argues that Proposals 2 and 4 constitute negotiable
appropriate arrangements, we find, as the Authority did in Congressional
Research Employees Association, that placing employees into positions for
which they may not be qualified presents a significant intrusion on the
Agency's ability to assign and select employees. Such a burden imposed on the
exercise of management's rights outweighs any benefits inuring to employees
under the proposals. Consequently, we conclude that Proposals 2 and 4 do not
constitute negotiable appropriate arrangements. Additionally, because the
proposals directly interfere with the exercise of management's rights, we find,
as we did with Proposal 1, that Proposals 2 and 4 do not constitute negotiable
procedures under section 7106(b)(2) of the Statute.

We reject the Union's assertion that the decision in Kira v.
Department of the Navy stands for the proposition that the Agency already
has determined that nuclear and non-nuclear employees may be placed in the same
competitive level. That case, which was a decision of an MSPB administrative
judge, involved a claim by two former machinists that a RIF had been improperly
conducted and that, because of their work on nuclear powered vessels, the
employees should have been in a separate competitive level. The claimants
noted, in support, that there were separate competitive levels for other
positions based on nuclear and non-nuclear work. The administrative judge
rejected the claim and found that under 5 C.F.R. § 351.403(a), the agency
had determined that a single competitive level was appropriate, noting the
interchangeability between machinists who work on nuclear vessels and those who
work on non-nuclear powered vessels. As we stated above, in exercising its
rights to assign and select employees, the Agency has the authority to decide
which positions are properly included in a particular competitive level. The
decision in Kira v. Department of the Navy supports this finding and
does not indicate that management would make the same determination that a
single competitive level is appropriate for the employees covered by these
proposals.

Additionally, we find no merit to the Union's reliance on AFGE,
Local 32 and to the Union's argument that the proposal is negotiable
because it vitally affects bargaining unit employees. Where, as here, it is
uncontested that a proposal relates to conditions of employment of bargaining
unit employees, the negotiability of a proposal does not turn on whether it
vitally affects unit employees' conditions of employment. Rather, the question
is whether the proposal is consistent with law, rule, and regulation, including
the Statute. Where a determination is made, such as in this case, that a
proposal directly and excessively interferes with the exercise of management's
rights, the proposal is nonnegotiable. Although there is no basis on which to
apply a vitally affects test in this case, the parties may wish to consult the
Authority's decision in National Weather Service Employees Organization and
U.S. Department of Commerce, National Oceanic and Atmospheric Administration,
National Weather Service, Silver Spring, Maryland, 44 FLRA No. 3 (1992),
for a discussion of the present application of the vitally affects test.

In sum, we conclude that Proposals 2 and 4 directly and excessively
interfere with management's rights to assign and select employees under section
7106(a)(2)(A) and (C) of the Statute. Under these circumstances, we need not
address the Agency's additional contentions that the proposals interfere with
other management rights.

V. Proposal 3

Management will give at least ten (10) calendar days notice to the
employees in the bargaining unit of a vacant position, also in the bargaining
unit, within the Nuclear program. Employees will be given the opportunity to
apply and to be considered at least ten (ten) [sic] calendar days prior to the
solicitation of applications from non-bargaining unit employees. If management
determine [sic] that bargaining unit employees are equally qualified to perform
the tasks in the nuclear program either with other bargaining unit employee
[sic] or non-bargaining unit employees, when filling the position management
shall select from qualified bargaining unit employees in accordance with their
seniority (most senior by SCD first offered the position) and shall select from
qualified bargaining unit employee [sic] prior to offering the position to
non-bargaining unit employees.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 is nonnegotiable because it
interferes with the right to select under section 7106(a)(2)(C) of the Statute.
The Agency argues that the proposal would require a 10-day delay before
soliciting applications from non-bargaining unit employees and would mandate
the selection of a bargaining unit employee, based on seniority, where
bargaining unit employees are equally qualified with non-bargaining unit
employees. The Agency argues that the proposal is distinguishable from
National Treasury Employees Union and Department of the Treasury, 24
FLRA 494 (1986) aff'd sub nom.Department of the Treasury v. FLRA
837 F.2d 1163 (D.C. Cir. 1988) (Department of the Treasury), in which
the Authority found negotiable a proposal that did not limit the Agency's right
to select but simply required that bargaining unit employees be considered for
positions before non-bargaining unit employees. The Agency maintains that, by
contrast, the proposal here would bar selection of non-bargaining unit
employees where unit employees are equally qualified. The Agency also notes
that in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms
v. FLRA, 857 F.2d 819, 822 (D.C. Cir. 1988) (Department of the Treasury,
BATF), the court reversed the Authority's decision in National Treasury
Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, 26 FLRA 497 (1987) (BATF), that found negotiable a
proposal that would have required the agency to rank and consider employees
before soliciting outside candidates. The Agency maintains that Proposal 3
similarly is nonnegotiable.

In its supplemental submission, the Agency argues that the proposal
does not constitute a negotiable procedure because it places a substantive
limitation on management's right to select. The Agency also states that the
proposal is essentially the same as a proposal the Authority found was not a
negotiable procedure in National Association of Government Employees, Local
R5-165 and Tennessee Air National Guard, 35 FLRA 886 (1990) (Tennessee
Air National Guard).

The Agency also argues that Proposal 3 is not an appropriate
arrangement under section 7106(b)(3) because it is not intended to address the
adverse effects of an Agency action. Rather, the Agency argues that the
proposal provides an advantage to bargaining unit employees in competing for
vacant positions. The Agency states that in American Federation of
Government Employees, Local 3296 and National Guard Bureau, Alaska National
Guard, 33 FLRA 99, 102-04 (1988), the Authority did not address whether a
provision that would have prevented the expansion of an area of consideration
constituted an appropriate arrangement because the union failed to demonstrate
how the agency's selection action would adversely affect bargaining unit
employees. The Agency argues that the Union here has failed to establish how
the proposal is intended to be an appropriate arrangement.

2. Union

The Union states that Proposal 3 constitutes a negotiable procedure
under section 7106(b)(2) of the Statute or an appropriate arrangement under
section 7106(b)(3) of the Statute. More specifically, the Union maintains that
the proposal is intended to give bargaining unit employees: (1) notice that a
nuclear position is available; and (2) the opportunity to apply and be
considered for such positions "prior to any selection being made outside the
bargaining unit and, if equally qualified, to be selected in order of seniority
and prior to non-bargaining unit employees." Petition for Review at 3. The
Union asserts that Proposal 3 establishes a process for the Agency to follow
before filling positions. The Union further states that "[u]nder the plain
meaning of the proposal, management's consideration of applicants is not
restricted to only bargaining unit employees, nor does the proposal compel
management to employ criteria that are not job related in choosing from among
initial groups of candidates." Response at 11. The Union maintains that
management would retain ultimate control over hiring decisions and that the
proposal does not set forth any particular criteria by which applicants must be
evaluated. Additionally, the Union states that, like Proposal 1, Proposal 3
"provide[s] appropriate arrangements for employees whose seniority rights are
adversely affected[,]" and "merely require[s] management to attempt to fill
vacant positions through the reassignment of qualified employees whose
positions have been eliminated." Id. at 7, 10.

Finally, the Union argues that Proposal 3 is virtually identical to the
proposal found negotiable by the Authority in Department of the
Treasury. The Union also states that the Authority should adhere to its
decision in BATF and that, although that decision was reversed, the
Authority is not bound to apply the court's decision in that case.

B. Analysis and Conclusions

1. The Proposal Directly Interferes with the Agency's Right to
Select

Proposal 3 requires the Agency to give bargaining unit employees at
least 10 days' notice of unit vacancies in the nuclear program and the
opportunity to apply and be considered for vacant positions in the nuclear
program before soliciting applications from non-bargaining unit employees. The
proposal further requires that if the Agency determines that bargaining unit
employees are equally qualified to perform the duties of the nuclear program
with other bargaining unit employees or with non-bargaining unit employees, the
Agency shall select from qualified bargaining unit employees, based on
seniority, and shall select from qualified bargaining unit employees before
offering a position to a non-bargaining unit employee.

The Authority has held that proposals requiring agencies to consider
unit employees before soliciting or considering outside applicants directly
interfere with management's right to select from any appropriate source under
section 7106(a)(2)(C) of the Statute. See, for example,
American Federation of Government Employees, Local 2022 and U.S. Department
of the Army, Headquarters, 101st Airborne Division, Fort Campbell,
Kentucky, 40 FLRA 371, 401-02 (1991); Tennessee Air National Guard,
35 FLRA 886. We found that such proposals would preclude agencies from
assessing the full range of potential candidates when initial employment
decisions are made, that is, before agencies are permitted to inform themselves
as to the qualifications of the full range of potential candidates for
positions the agencies decide to fill. We also found in Tennessee Air
National Guard, relying on the court's decision in Department of the
Treasury, BATF, that such proposals would exert pressure on agencies to
fill positions with bargaining unit employees rather than leave positions
unfilled during the time it would take to initiate and complete a search for
outside candidates. We noted that the practical consequence of such proposals
resulted in a substantive limitation on management's right to select employees
from any appropriate source and, therefore, that the proposals directly
interfered with the exercise of that right.

We reach the same result here. By requiring the Agency to consider
bargaining unit employees prior to soliciting applications from non-bargaining
unit employees, Proposal 3 would exert the same type of pressure on the Agency
to fill positions with bargaining unit employees and would place the same
substantive limitation on the Agency's right to select employees from any
appropriate source. Therefore, we find that Proposal 3 directly interferes with
the Agency's right to select under section 7106(a)(2)(C) of the Statute. The
Union's assertion that "management's consideration of applicants is not
restricted to only bargaining unit employees," does not compel a different
result. Response at 11. As noted, management retains the right to assess the
full range of potential candidates when it decides to fill positions. Because
the proposal would not permit the Agency to solicit non-bargaining unit
employees concurrently with bargaining unit employees and because the practical
consequence of the proposal would place pressure on management to select
bargaining unit employees, the proposal directly interferes with the exercise
of management's right to select.

We also reject the Union's contentions that Proposal 3 is negotiable on
the same basis as a proposal found negotiable in Department of the
Treasury and that the Authority should adhere to its decision in
BATF. In Department of the Treasury, the proposal required the
agency to give priority consideration to bargaining unit candidates but did not
prevent the concurrent solicitation of other candidates. In contrast, the
proposal here would prevent the concurrent solicitation of non-bargaining unit
employees. In Tennessee Air National Guard, the Authority adopted the
approach taken by the court, rather than that taken by the Authority in
BATF, in finding that proposals requiring agencies to rank and consider
employees before soliciting outside applicants placed substantive limits on
management's right to select from any appropriate source. Because the Authority
now follows the approach taken by the court, we reject the Union's request that
the Authority adhere to its decision in BATF.

In finding that the portion of the proposal requiring the Agency to
solicit and consider bargaining unit employees before non-bargaining unit
employees directly interferes with the Agency's right to select, we need not
address more specifically the remaining portions of the proposal. Also, and for
the same reasons discussed in connection with Proposals 1, 2 and 4, we find
that Proposal 3 does not constitute a negotiable procedure under section
7106(b)(2) of the Statute.

2. Proposal 3 Is Not a Negotiable Appropriate
Arrangement

Initially, we disagree with the Agency's contention that the Union
failed to establish how the proposal is intended to be an appropriate
arrangement. The Union explained that the proposal is designed to apply to
employees whose seniority rights may be affected or whose jobs may be
eliminated as a result of the Agency's action in changing job descriptions. As
so explained, we find that the proposal is intended as an arrangement. However,
on balance, we conclude that the proposal would excessively interfere with the
exercise of management's right to select.

As explained by the Union, the proposal is designed to give bargaining
unit employees first consideration for vacant positions in the nuclear program
and to require the Agency to select bargaining unit employees where they are
equally qualified with non-bargaining unit employees. As we found above, by
requiring the Agency to consider bargaining unit employees before soliciting
applications from non-bargaining unit employees, the proposal would prevent the
Agency from making selections from any appropriate source. We view this
intrusion on the exercise of management's right as outweighing the benefits
inuring to employees under the proposal.

Clearly, affording first consideration to bargaining unit employees
would provide the employees with a benefit when positions in the nuclear
program are filled. However, the practical consequence of initially limiting
the Agency's consideration of applicants to bargaining unit employees would
exert pressure on the Agency to fill positions from within the bargaining unit
rather than soliciting candidates from other appropriate sources. In fact, the
express wording of the proposal, as well as the Union's explanation, indicate
that the proposal is intended to compel the selection of bargaining unit
employees over equally qualified non-bargaining unit employees. It is clear,
therefore, that the proposal would operate to restrict the Agency's ability to
consider, and ultimately to select, candidates from any appropriate source.
Moreover, this restriction would apply whenever the Agency decides to fill a
position in the nuclear program and not simply when positions encumbered by
bargaining unit employees have been eliminated, as suggested by the Union.
Thus, the effect of the proposal on the Agency's ability to select from any
appropriate source would arise each time the Agency decided to fill a position
in the nuclear program. In our view, the unlimited applicability of the
proposal goes beyond the adverse effects of the change in job descriptions on
bargaining unit employees and excessively interferes with the Agency's right to
select. Consequently, we conclude that Proposal 3 is not an appropriate
arrangement under section 7106(b)(3) of the Statute. ComparePortsmouth Naval Shipyard, 37 FLRA at 253-58 (proposal that employer
minimize displacement actions caused by RIF, to the extent possible, through
reassignment held to be negotiable appropriate arrangement); American
Federation of Government Employees, AFL-CIO, Local 2635 and Naval
Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41, 41-45 (1987)
(proposal that employer make reasonable effort to reassign employees whose
positions were eliminated found to be negotiable appropriate arrangement).

VI. Order

The petition for review is dismissed.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The Agency withdrew its allegation of nonnegotiability
as to Proposals 5 and 6. Accordingly, those proposals are not before us and
will not be considered in this decision.

Each agency shall establish competitive levels consisting of all
positions in a competitive area which are in the same grade (or occupational
level) and classification series and which are similar enough in duties,
qualification requirements, pay schedules, and working conditions so that the
incumbent of one position could successfully perform the critical elements of
any other position upon entry into it, without any loss of productivity beyond
that normally expected in the orientation of any new but fully qualified
employee.

3. Absent any argument to this effect, and in light of our
conclusion as to Proposal 4, we need not address whether the cited regulation
constitutes an "applicable law" within the meaning of section 7106(a)(2) of the
Statute and, if so, whether the proposal is an attempt to impose a contractual
requirement that management comply with that applicable law. See,
generally, National Treasury Employees Union and U.S. Department of
the Treasury, Internal Revenue Service, 42 FLRA 377 (1991), petition for
review filed sub nom.Department of the Treasury, Internal Revenue
Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991), in which the
Authority discussed its position with respect to the negotiability of proposals
seeking to impose external limitations on the exercise of management
rights.